Criminal Law (High Risk Offenders) (Psychologists) Amendment Bill

by Vickie Chapmanon March 19, 2019

Second Reading

I thank the speakers who have made a contribution: firstly, the member for Kaurna who, on behalf of the opposition, has indicated their support of this bill, although he has identified some reservations; and the members for Kavel and Heysen, who elegantly added to the standard of the debate and gave valuable extra historical information, which I hope adds to the reassurance of the house of the significance of not only the principal legislation and the development of it but also why we are here today to amend it.

May I just briefly say that a number of matters were raised at the briefing on 12 March (which I assume to have been last week) by the shadow attorney-general of another place, and I have to hand a script of a number of matters that I believe covers the matters that were raised. I am happy to place those on the record, I hope, to encourage the opposition to the understanding of the significance of the effect of these amendments.

Can I just briefly say this: the Criminal Law (High Risk Offenders) Act 2015 in criminal law terms is quite novel law because it addresses the question of what is to be done with people who are deemed to be high-risk offenders by certain definitions, who have concluded their sentence or who are about to, and it is considered for various reasons that they are unsafe to be placed back in the community, that is, unsafe for the purposes of the community.

In a way that flies in the face of the concept that you commit an offence against public order, you are convicted, you are sentenced, you do the time and you are released, because this new law does two things, one of which is particularly novel; that is, in the face of the 'do your time, you will be released', it gives a process that actually keeps you locked up. It can be up to five years, or such lesser period as the Supreme Court determines.

That is quite a new and different concept, but one that was at that time under discussion around the country as to how we deal with these very difficult cases. In a way, it is a bit easy to deal with someone who has a mental incapacity because they are not convicted. They are treated in a different way. They may be held in a detention facility or in custody as such, but they are not held in a prison, and they are treated as a health patient. They are in a forensic environment; nevertheless, they are a health patient.

But this is an entirely new category. I remind members that, in undertaking such a significant reform affecting someone's actual freedom in a continuing detention order, it had to be a fairly high threshold. The law that we passed really covered only four areas: a person had to be in the category of a serious sexual offender, and there is quite a bit of definition about that; alternatively, they had to be in the category of a serious violent offender; they had to be a terror suspect who was serving a sentence of imprisonment or a person who was subject to an extended supervision order.

Within those four categories, they had to get to that threshold. There would not be a week that goes by when an application is not put in front of me with someone's history indicating whether there should be an application for a continued detention order or whether I, as Attorney-General, should apply for an extended supervision order and/or an interim supervision order with that, all of which are provided for under the act.

There are two things that have to happen. There has to be sufficient evidence that, firstly, they do qualify as a high-risk offender and, secondly, there is a risk to the community and the safety of the community is at peril. There is a whole list of other direct matters mainly centred around the likelihood of reoffending, which are all set out in the act. I will not repeat those, but I remind members that this is a discrete, relatively small group of people who the parliament has determined need to have a second set of protection around them for the purposes of ensuring that the public are safe. That is why we have it.

I think it is fair to say that the previous government, when they presented this legislation for the parliament's consideration, were of the view—and, indeed, we support it—that, if we are going to exercise this role of locking people up for longer, even when they had undertaken and completed their sentence, or ordering them to either abstain from certain conduct or do certain things under an extended supervision order, then we need to be very clear about what the terms and conditions are going to be and we need to have someone very senior make those decisions. The Supreme Court was selected, and they have undertaken this role.

I think it is fair to say that, in the last year or so that we have been in government, it has been pretty clear that more applications have been made than were probably expected. I have had continuing discussions with the Chief Justice of the Supreme Court on the number of applications that have been made because it is his court that has responsibility for dealing with this. Regarding the actual numbers, I am advised that 40 reports were prepared by the Forensic Mental Health Service in the period from October 2017 to November 2018, a period of one year.

Based on the statistics for 2017-18, it is expected that there will be around 35 to 36 reports per annum, which is slightly more, on checking, than the information that I understand the member for Kaurna was provided. You can see that we have nearly one of these matters a week that requires a psychiatrist's assessment.

Of course, the other thing is that, not long after coming into office—in the envelope of the Colin Humphrys case, which is now well known to the public—the question of the threshold was considered as to what is to apply in relation to these matters, and the obligation for the two medical practitioners' support plus the change of onus and the obligation on behalf of the applicant for release was considered. A tight set of prescriptive rules apply to this very narrow aspect of the population who are in these dangerous categories, which attract this extra protection for the community. We endorse all that. I appreciate the now opposition's support in tightening that up.

Another matter that became evident to us as a new government by late last year was that the number of people available to do these reports—which was a process via the South Australian Forensic Mental Health Service under the directorship of Dr Nambiar, who has been referred to—was clearly getting to an acute stage, and we convened some round tables and had some discussion with various representatives at that time. We did not know at that stage that the previous government had in fact been alerted to this problem in 2017. Much has been said about that, but let's move on. They did not do anything about it, but we are, and we need to do something about it.

The heads of the courts, their representatives, a particular magistrate Dixon (who is familiar with these matters and who has some history in looking at these issues), the Courts Administration Authority, the Office of the DPP, the South Australia Police, the Forensic Mental Health Service—in particular the clinical director, Dr Nambiar—the Department for Correctional Services and the Legal Services Commission all have a direct interest in either providing a service or supporting the applications or management in these matters.

We sat down and talked about what we could do to try to redress this situation. We clearly had a certain cohort of work to be done and it was a level of work that was not all that attractive to a lot of people. Let's be fair: not everybody wants to go down to high security prisons and interview people in this category. That is a fact of life, so we had to address it. A number of things have occurred.

Firstly, extra funding was allocated for SA Health, which was the referring body and an operational body for the provision of the reports, under Dr Nambiar. Additional funding of $803,000 per annum went towards the new forensic court diversion and assessment service. In addition to that, the remuneration rate for court-ordered reports was reviewed and the rate for those reports prior to March 2019, under section 269 of the Criminal Law Consolidation Act 1935, was $772.00 per report and reports under the Criminal Law (High Risk Offenders) Act and sections 57 and 59 of the Sentencing Act were at $989.00 per report. Both are GST exclusive.

The remuneration post 1 March 2019 will be all reports prepared on a fee-for-service basis based on the WorkCover scale. Accordingly, there is no fixed rate for reports based on each act. The total cost will be based on the time taken to assess the defendant and the work involved in preparing the report. These are two important initiatives that we sorted out as quickly as we could. However, in the meantime we did need to gather the advice of a number of other parties as to how we might spread the load in respect of health professionals.

The question of psychologists was presented as an option in a similar way to what we had done when the previous government came to us and said, 'We don't have enough dentists in South Australia. We will get dental therapists to come in and take on a certain role in relation to dental treatment, particularly in respect of children and decay and all of these sorts of things.' There was a question of the professional standards that needed to be applied, and I recall some conditions were put to ensure that dental therapists were only going to be doing the work in relation to children's teeth because, as probably most people would appreciate, children's teeth are the baby teeth and can be extracted fairly easily.

Usually, children do not have diseased gums or things that tend to be more applicable in adults, so we could get dental therapists. As a parliament, we could approve dental therapists undertaking some of this work for the dental hygiene and health of children particularly and that would relieve the responsibility or workload for the other dentists. These are the sorts of adjustments that can be made, so we worked through that.

The recommended reforms that were presented on the table in respect of psychologists were then consulted on by the Forensic Mental Health Service—again, Dr Nambiar, the clinical director, was valuable in his advice—psychiatrists for the forensic court diversion and assessment service; Dr Craig Raeside; staff of the existing court liaison service; the South Australian Health chief executive, Dr Chris McGowan; the Chief Psychiatrist, Dr John Brayley; the Courts Administration Authority, which is headed by the State Courts Administrator, Ms Julie-Anne Burgess; the Legal Services Commission; the Australian Psychological Society; and the Royal Australian and New Zealand College of Psychiatrists.

It is a big list, but it is an important one because clearly we need to know that the clinicians who are going to undertake this work will be competent to do so and able to assist the Supreme Court in making these hard decisions. Once we got through that stage—and there was certainly an indication of an appetite for this reform—we then had to amend the act. The bill does this by providing that, in addition to a medical practitioner, which is not currently defined to include a psychologist, a prescribed health professional is now to mean a psychologist or a medical practitioner nominated by the prescribed authority. That is the addition we are adding to cover this initiative.

Those legislative amendments, via this bill, were then consulted on by the Forensic Mental Health Service, the Law Society, which has been mentioned, and the South Australian Bar Association. Obviously, the bill itself is not very long. It is to add in this extra prescription for the purposes of a qualification extension for a prescribed health professional. The same rules still apply; that is, the prescribing authority that nominates these is the Forensic Mental Health Service, as I have referred to. Dr Nambiar is the head. There is no power of delegation. I understand that there was a query at the briefing on this.

Our understanding is that there is no power of delegation and, accordingly, I inform the house of that. I expect that if Dr Nambiar were not available—on leave, for example—there would be an acting director and, of course, they would have those powers, but there is no capacity for him to delegate them. He does have power to identify people within the team. I still do not know exactly how many are in the unit, but it is quite a significant unit in the health department.

There was a question, for example, as to who the second report was prepared for in the Humphrys case. My understanding is that Dr Furst, a South Australian forensic psychiatrist, undertook that work, but there are occasions when, for obvious reasons, it is necessary to get someone from the private sector or, indeed, interstate. I am advised that there are usually very limited occasions when that might be required, as you would expect—where there might be a conflict of interest—but it is the exception rather than the rule.

Let's just consider the cohort of work to be done by this unit or allocated by psychiatrists in this unit under the direction of Dr Nambiar. There has been some work on having a look at the report. It is anticipated that forensic psychologists will prepare approximately 89 per cent of the reports ordered under the act, with forensic psychiatrists preparing 11 per cent. I recall the member for Kaurna suggesting that it would be only four of the 30. I am not sure whether that was misunderstood at the briefing or the other way around; perhaps there was some misunderstanding.

However, psychologists would pick up the bulk of the work, and the 11 per cent is expected to be done by the forensic psychiatrists. I think it is important for the parliament to be aware that at all times health professionals undertaking these reports are under the supervision of the director. That is an important addition and some security in the standard that is to be available and maintained for the purposes of undertaking these tasks.

The final matter raised by, I think, the opposition—but I will give you credit for it if you had not—is about how the reports are allocated and what priorities and considerations are given. The allocation of reports, I am advised, is typically prioritised in order of the date of the court request. There may be times when there is a short time frame between the date of the court request and the day of the next hearing. In those instances, the clinical director may prioritise those requests or, if this time frame is too short, the relevant stakeholders will be advised that further time is required. Allocation of reports may also depend on the type of matter; if there is a particular type of matter that would benefit from a forensic psychiatrist with unique expertise, the request may be assigned to the psychiatrist.

For the benefit of members, I should add that these applications, once they are before the Supreme Court, are under the management of a Supreme Court judge or the Full Court, if it is under appeal. They may indicate, which they have—certainly the Chief Justice has made comment on these matters—where there is a circumstance where some urgency is expected to be acknowledged in a particular case and, where possible, that is accommodated as quickly as possible to ensure that the request of the Supreme Court is followed through as best as can be done.

However, I want to reassure the house that when our new government became aware of this problem, as quickly as we could we gathered around the table people who had expertise, experience and capacity to contribute to the resolutions of this situation. Certainly, I heeded the concerns raised by the Chief Justice about any delay in the process of court applications, and we acted as expeditiously as possible to bring into account these new initiatives. We did not wait for the whole lot to be resolved. We have progressed others already, allocated extra funding and set new fees. We are here to do what we think will be an effective further tranche of reform by expanding the definition of health professionals to undertake this work.

I want to thank all members of the Attorney-General's office in particular and the opposition for their indication of support. They have undertaken the work to deal with this matter as expeditiously as possible. I am happy to move into committee if there are any further questions from the opposition or, indeed, any members.